Archive for February, 2016

To engraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument, and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible—because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 620-21 (1857) (Curtis, J., dissenting).


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I wasn’t a big John Kasich fan when he was a House GOP leader in the 1990s. I’m not a big fan of him today. But my standards for this presidential election have fallen to the point where I’m not looking for a candidate whose fan I could be; I’m looking for someone who, if elected President, wouldn’t tank the United States and/or blow up the world. A low bar, but among the candidates still standing, John Kasich is the only one I’m confident wouldn’t do a limbo under it.

Kasich, as P. J. O’Rourke has correctly stated, is a reasonably responsible, pretty boring governor of a purple state. If by some miracle (not all miracles are visibly exciting) he snags the GOP nomination and then the presidency, I will be thrilled.

Someone has to strike a blow for boredom. For solid, responsible, budget-balancing boredom — not the deadly postmodern ennui that makes a man swing for the fences when a ground ball to the right side of the infield will do, or think of electing Donald Trump to any office more consequential than reality TV host.

Jeb! — with or without the exclamation point — might have struck such a blow. But with Jeb! gone from the race, Mr. Kasich’s now the only guy who could do it.

Don’t let us down, John. ‪#‎KasichAtTheBat‬

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Antonin Scalia hasn’t been buried yet. Since his death was discovered Saturday morning, not one hour of one business day has yet passed.

The fact that we’re already approaching DEFCON 3 in the fight over who will succeed him on the Supreme Court of the United States is a sign of what President James Buchanan would call “a disease in the public mind” — the present disease being of a kind that would make one view Mary Crawford, who regarded happily the prospective enlargement of Edmund Bertram’s inheritance while Edmund’s older brother Tom was gravely ill but still alive, as the heroine of Austen’s Mansfield Park. I think about five seconds elapsed between the first news I had of Scalia’s death and the first published remarks about who’d be replacing him. Always keep the strategems sharpened, the hands ready to collect the spoils, and all that.

Were he alive, I do not doubt Scalia himself would have regarded with distaste the prospect of being replaced by a non-originalist, non-textualist Justice. However, I also have no doubt that Scalia the textualist would have loathed the idea of adding some kind of extra-constitutional “election year exception” to the appointments clause of Article II.

The world often is not a nice place for those who adhere consistently to firm principle — for circumstances that make the principle inexpedient are usually crouching at the door. But taking expediency over principled consistency generally creates bigger calamities: it damages the world, and has a strange way of backfiring sooner than the compromiser foresees. What that means, if you’re a textualist, is your philosophy doesn’t admit exceptions for distasteful results — and if you compromise for expediency now, your compromise will, sooner or later, produce results far more disastrous than the addition of one more Living Constitutionalist to the Supreme Court.

That’s already too much commentary for a holiday Monday, but I’ll add just a few words more.

For the living — those actually charged with the responsibilities of appointment and advice and consent, and the chattering onlookers — the text of the Constitution prescribes the next steps of this dance.

For the Scalia family and all the grieving, may God comfort them.

For Antonin Scalia: thank you, sir, for your good service to our nation; and rest in the peace of Christ.

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Occasionally I start a book thinking, “I’m gonna need a crate of TUMS® to get through this.” I try to read at least 2-3 such books every year. And sometimes these books pleasantly surprise me.

The most recent such pleasant surprise: Stephen Prothero’s Why Liberals Win the Culture Wars. Granted, the book’s title and introduction are annoyingly triumphalistic. Prothero’s historical analogies — Jeffersonians, pro-Mormons and pro-Catholics as stand-ins for today’s “liberals”; Federalists, anti-Mormons and anti-Catholics as stand-ins for today’s “conservatives” — are rather forced. In his treatment of the current wave of culture wars, Prothero grossly understates the significance of the political mobilization of anti-religious Left within the Democratic Party in the 1970s. The historical “wins” Prothero cites are neither so clear nor so stable as he seems to think — I mean, how much of an “expansion of the American family” really occurred when theologically-heterodox, nominally-Christian Jefferson succeeded theologically-heterodox, nominally-Christian Washington and Adams as President? And Prothero’s shifts between his own idiosyncratic definitions of “liberals” and “conservatives” and the contemporary, colloquial definitions of those words are often a little too convenient.

Still, by the time I reached the book’s end I was glad I’d read it in full. On church-state relations, Prothero is basically a Jeffersonian — that is, he’s not hostile to religious free exercise, so long as it doesn’t come with de jure or de facto religious establishments or religious tests for public office. Granted, Prothero stands toward the left end of the Jeffersonian ground between Jacobin secularists and religious establishmentarians. But given the current increases in the numbers of both Jacobins and establishmentarians, I’m generally glad to see a man holding onto any corner of the middle ground set forth in the Virginia Statute for Religious Freedom (1786) and the First Amendment.

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Suppose one reads a story of filthy atrocities in the paper. Then suppose that something turns up suggesting that the story might not be quite true, or not quite so bad as it was made out.

Is one’s first feeling, ‘Thank God, even they aren’t quite so bad as that,’ or is it a feeling of disappointment, and even a determination to cling to the first story for the sheer pleasure of thinking your enemies are as bad as possible?

If it is the second then it is, I am afraid, the first step in a process which, if followed to the end, will make us into devils. You see, one is beginning to wish that black was a little blacker. If we give that wish its head, later on we shall wish to see grey as black, and then to see white itself as black. Finally we shall insist on seeing everything — God and our friends and ourselves included — as bad, and not be able to stop doing it: we shall be fixed for ever in a universe of pure hatred.

C. S. Lewis, Mere Christianity 91 (1952).

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